JAMES EDWARD LEWIS, Appellant v. STATE OF TEXAS, Appellee

Affirmed; Opinion issued June 12, 2008
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00834-CR
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JAMES EDWARD LEWIS, Appellant
V.
STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-81341-06
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OPINION
Before Chief Justice Thomas and Justices Moseley and Lang
Opinion By Chief Justice Thomas
        The jury found appellant guilty of failure to appear at trial in a prior criminal proceeding and the trial court assessed punishment at two years' confinement in the Texas Department of Justice Institutional Division. In three points of error, appellant contends the trial court's admission of three exhibits into evidence violated his rights under the Confrontation Clause, he received ineffective assistance of counsel, and the trial court erred in refusing to allow appellant's counsel to withdraw. We affirm.
Background
 
        On March 8, 2005, appellant was charged in cause number 416-80515-05 with the possession of a controlled substance. Appellant posted a felony bond, but the trial court ordered the bond forfeited after appellant failed to appear at the first setting on March 22, 2005. On November 11, 2005, appellant requested the trial court reinstate the bond. The trial court did so and instructed appellant to appear for trial on February 27, 2006. Appellant failed to appear at trial.
        Appellant was indicted for failure to appear. See Tex. Penal Code Ann. § 38.10 (Vernon 2003). At trial, the State offered into evidence the felony bond, the docket sheet from the underlying case, and portions of appellant's testimony from the November 11, 2005 hearing. Appellant's only objection to the documents was the witness “has no knowledge of what is in these documents” and, therefore, should not be allowed to refer to the documents during testimony. The trial court overruled the objection and admitted the documents.
        The jury found appellant guilty of failing to appear, and appellant filed this appeal.
 
Admission of Exhibits
 
        In his first point of error, appellant argues the trial court's admission of the three exhibits violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. See U.S. Const. amend. VI. However, appellant did not object at trial that the exhibits violated his confrontation rights. Accordingly, appellant failed to preserve this point of error for appeal. Tex. R. App. P. 33.1(a)(1); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.-Dallas 2006, pet. ref'd) (right of confrontation must be preserved by a timely and specific objection at trial). We overrule appellant's first point of error.
Ineffective Assistance of Counsel
 
        In his second point of error, appellant argues he received ineffective assistance of counsel because his trial counsel did not raise proper objections to the three exhibits, did not request a directed verdict, and failed to request an instruction in the jury charge that a reasonable excuse for failing to appear was a defense to prosecution. To prevail on an ineffective assistance of counsel claim, appellant must show by a preponderance of the evidence (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 814.
        Direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped. Goodspeed, 187 S.W.3d at 392. In most cases, a silent record provides no explanation for counsel's actions and, therefore, will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Further, counsel should be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Absent such an opportunity, we should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
        Appellant did not file a motion for new trial and did not raise his ineffective assistance of counsel claim in the trial court. As a result, trial counsel was not given an opportunity to explain his actions or trial strategy. Therefore, the record provides no discussion of trial counsel's purported errors and contains no discernible explanation of the motivation behind trial counsel's decisions regarding objecting to the exhibits, moving for a directed verdict, or requesting a defensive instruction. Nor does it contain any discussion of counsel's trial strategy. Without counsel's explanation, we cannot conclude counsel did not have sound strategic reasons for his actions. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (if evidence complained of is admissible, counsel not ineffective in failing to object to it); Todd v. State, 242 S.W.3d 126, 136 (Tex. App.-Texarkana 2007, pet. ref'd) (counsel not ineffective in failing to request directed verdict if realized admitted evidence, if believed, was legally sufficient to support conviction); Luce v. State, 101 S.W.3d 692, 694 (Tex. App.-Texarkana 2003, no pet.) (drug use not reasonable explanation for failing to appear). Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) (“The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.”). Because appellant has failed to carry his burden of establishing trial counsel was ineffective, we overrule appellant's second point of error.
Withdrawal of Counsel
 
        In his third point of error, appellant asserts the trial court erred in denying appellant's trial counsel's request to withdraw. Appellant was indicted on June 15, 2006, and the case went to trial on June 26, 2006. After the jury could not reach a verdict, the trial court declared a mistrial on June 28, 2006. On August 23, 2006, appellant's counsel during the first trial filed a motion to withdraw because appellant had sued his counsel in federal court. The trial court granted the motion and appointed appellant new counsel on September 18, 2006.
        The case was set for trial on May 21, 2007. On the morning of trial, appellant's trial counsel orally requested he be allowed to withdraw because he was not ready and could not, due to what he had “gone through” with appellant and the State, defend the case. Trial counsel stated, without any detail, that a conflict existed between him and appellant based on a point of law appellant wished to assert. Appellant apologized to his counsel for being uncooperative and indicated he wished trial counsel to remain on the case. The trial court denied the motion to withdraw.
        We review a trial court's decision on a motion to substitute counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). “However, the right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice.” Id. (quoting Green v. State, 840 S.W.2d 394, 408 (Tex. Crim. App. 1992)). Personality conflicts and disagreements concerning trial strategy are typically insufficient grounds to justify an attorney's withdrawal from a case. King, 29 S.W.3d at 566. Further, a trial court has no duty to search for counsel agreeable to the defendant. Id.
        Here, the case had been pending for a lengthy period of time. Further, although trial counsel had represented appellant for approximately eight months, he did not request to withdraw until the day of trial and gave only vague reasons for the requested withdrawal. Appellant then apologized for any difficulties he had caused and requested trial counsel continue the representation. Under these circumstances, appellant has not shown the trial court abused its discretion in denying the motion to withdraw. See id.; Ellis v. State, 99 S.W.3d 783, 788 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Therefore, we overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          LINDA THOMAS
                                                          CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 47
070834f.u05